Congress should look beyond the flawed New York Times coverage of alleged state-sponsored Russian Olympic doping, which relied on a discredited informant and then largely ignored a respectable court.

July 9, 2018

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An international sports-doping bill—the first of its kind criminalizing sports doping for international competitions—named the Rodchenkov Anti-Doping Act was introduced in the US House of Representatives on June 12. The subject matter is highly relevant because sports doping is an important international problem with geopolitical implications. The name is disconcerting, however, because Dr. Grigory Rodchenkov has admitted to being one of the biggest enablers of sports doping in history. Why, then, would the US Congress consider honoring him?

Perhaps the main reason for this development is the influence of The New York Times. Congressional representatives, like so many, have been exposed to continuing and distorted Times coverage on this subject. That coverage has now been exposed as selective by two lengthy opinions of the respected Court of Arbitration for Sport (CAS) that were published on April 23, 2018, and, not coincidentally, that received only minimal coverage by the Times. What distinguished these CAS opinions is that, for the first time, in the CAS hearings Rodchenkov was confronted by his accusers with cross-examination. The results of that cross-examination tell a very different story from that related by the Times in the past two years.

Publication by The New York Times of an unverified front-page interview based on a highly questionable informant is a formula for trouble, which is an apt word to describe the May 13, 2016, article—“An Insider in Sochi Tells How Russia Beat Doping Tests”—on alleged Russian state-sponsored doping. Exacerbating the problem was the companion lead article in the sports section with a headline worthy of the National Enquirer: “Russia’s Open Secret Is Whispered No More.” The trouble became apparent almost two years later, with the publication of the CAS opinions mentioned above and the scant coverage of those opinions by the Times. This combination of distorted coverage and lack of coverage have had significant athletic and geopolitical repercussions: detracting from the Rio and PyeongChang Olympic Games and demonizing one country, Russia, for what is in fact an international doping problem. The result is an impediment to the solution of that doping problem and a worsening of the new cold-war atmosphere that now permeates relations between the West and Russia.

Such is the power of the Times that it generated worldwide headlines out of something that had been reported six months before its front-page, multi-column lead article. In November 2015, a three-person so-called Independent Commission (IC) appointed by the World Anti-Doping Agency (WADA) concluded, relying in part on witnesses who demanded anonymity, that there had been systematic doping involving Russian Olympic and Paralympic athletes. No ban of Russia resulted from the IC Report.

According to the IC Report, at the center of the story was the then–director of the Russian anti-doping laboratory, Rodchenkov, who the IC found was “at the heart of the positive drug test cover-up.” The IC Report made some statements about him that would give any reasonable person pause about his reliability as a witness, including “The IC finds that that Dir. Rodchenkov’s statements regarding the destruction of the [1417 urine] samples are not credible” and “Director Rodchenkov was also an integral part of the conspiracy to extort money from athletes in order to cover up positive doping test results.” The Times article states that Rodchenkov denies extortion, despite evidence to the contrary that at least two Russian athletes gave to the IC.

Not surprisingly, once Rodchenkov became subject to criminal charges in Russia, he was forced to resign from his position and fled to the United States. What was surprising, in light of the negatives about Rodchenkov in the IC Report and his previous opposition to it, was that the Times published its prominent and sensational interview of him, stating that, despite the fact that “Rodchenkov’s account could not be independently verified…it was consistent with the broad findings” of the IC Report. As noted above, the IC Report was anything but a ringing endorsement of Rodchenkov. Although Rodchenkov was now supportive of the IC Report, his change of heart—like that of many informants—got him a valuable reward: placement in the US Witness Protection Program.

Further illustrating the power of the Times, four days after the publication of this sensationalized and unverified article, the International Olympic Committee (IOC) ordered another WADA investigation because the IOC considered Rodchenkov’s “spectacular revelations” to the Times “very detailed and very worrying.” This new investigation became the so-called “Independent Person” Report, the independent person (IP) being a Canadian law professor named Richard McLaren.

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How independent the IP really was, however, is questionable because he was one of the three authors of the IC Report, and the likelihood that he would disagree with himself was slim to none. Echoing the Times, the IP considered Rodchenkov’s changed testimony, which now supported the IC Report, credible.

The IP finished his new report, which covers numerous athletes over multiple years, in only 57 days. One explanation for this extraordinary speed on such a complex report is that he questioned no Russian officials. Although some might have wondered about the lack of balance caused by this failure, his report was greeted with great fanfare by the Times and by international media, which did not question—despite vehement denials by Russia and the Russian athletes—the IP’s conclusion of Russian state-sponsored doping based on, as McLaren later put it, “immutable facts.” The report—despite, as described below, its fatal flaws—ultimately led to the banning of hundreds of Russian Olympic and Paralympic athletes, from Rio and PyeongChang combined, without hearings to prove their individual guilt. No such ban of a great world power’s athletes had occurred since Germany and Japan were banned from the 1948 Olympics.

The chaos in the Olympic movement since 2016 caused by these bans has been the subject of numerous headlines chronicling the often inconsistent banning and unbanning of Russian athletes by the IOC and the various international sports-governing organizations. Part of the reason for the chaos is that the Court of Arbitration for Sport—the highest court for international sports matters—had not yet weighed in with definitive decisions that included a critical element of due process: the cross-examination of Rodchenkov and McLaren. When that process finally started, based on a joint hearing of the doping cases of 39 Russian Winter Olympic athletes occurring just weeks before the 2018 PyeongChang Olympics, 27 of the bans were overturned completely and 12 were partially overturned.

This was major news, although at this point—February 1, 2018—because of the imminence of the PyeongChang Olympics, the CAS issued just a media release, rather than reasoned decisions. The Times duly reported this development on the same day it occurred. Despite the great majority of favorable results for the Russian athletes, the Times report noted, with some self-congratulatory editorialization, that the “case against Russia was largely built on the bombshell testimony of the former head of its drug testing laboratory, Grigory Rodchenkov.”

On April 23, 2018, the first two reasoned CAS decisions, each over 150 pages, were published, one finding no drug violations by a cross-country skier and one finding drug violations by a bobsledder. The other 37 decisions will be published later, but, because all 39 cases were the subject of a joint hearing, the background facts for all of the cases are the same. The Times waited a week to report on these major reasoned decisions, and its coverage devoted only a few paragraphs to them, with none of the many details from the decisions that, as described below, undermined the IP Report.

The CAS is a prestigious court, established in 1984 by the then-president of the IOC, with a roster of many distinguished international jurists. The three who decided the recently published cases were a senior German law professor, a senior German international lawyer, and a senior French-Iranian lawyer, who, combined, have experience in hundreds of arbitrations and mediations. Not only have none of them had their integrity questioned by any of the parties to the arbitration, but also all parties confirmed at the end of the proceedings that “they had a full and fair opportunity to make their case, and that their right to be heard had been fully respected and that they had no objections as to the manner in which the proceedings had been conducted.”

Not only was Rodchenkov cross-examined for the first time at the CAS hearings, but so was McLaren. The results were devastating. Despite that devastation—or perhaps because of it—these CAS decisions are not well known, primarily for one reason: the paltry coverage of the Times, especially compared to the countless column inches the Times had devoted to the now-discredited accounts of Rodchenkov and McLaren regarding the involvement of individual athletes in the doping scandal.

How the Times could provide such minimal coverage of these important April 2018 reasoned CAS decisions on matters on which the Times had extensively reported is inexplicable. By allowing the Russian athletes, for the very first time, to confront their accusers with cross-examination, the CAS was in a position to make startling revelations about Rodchenkov and McLaren. Rodchenkov, for example, admitted that he never personally witnessed any accused Russian athlete committing doping violations themselves, including taking the illegal drug cocktail, giving a clean urine sample out of competition, tampering with a urine sample, or transmitting information to co-conspirators about the coding on the drug sample after it had been given.

Furthermore, several of Rodchenkov’s explanations of events were simply not believable. For example, Rodchenkov had stated that the swapping of urine samples occurred after 1 am, but his own diary entries confirmed his bedtime by midnight each night, with two or three exceptions. When confronted with this contradiction, he made the incredible claim that he had lied to his diary.

Rodchenkov, the hero of a subsequent Academy Award–winning documentary, Icarus, gave similar incredible explanations when confronted with a videotape in which he said “I do not give a fuck about fighting the doping” (claims it was said “in [an] emotional context”); when confronted with contradictory accounts of what was in the drug cocktail he brewed (claims it was a typo); and when confronted with a comment he had made that his diary, which was a tell-all about state-sponsored doping, represented “millions of dollars in my bag” (claims he was joking).

Regarding alleged Russian tampering with the tamper-proof bottles that contained urine specimens—which is absolutely essential to the scheme Rodchenkov outlined—he offered no explanatory evidence regarding the method of opening, simply referring to those who opened the bottles as “Magicians.” He testified that “he did not know the ‘precise method’ used by the Magicians to open the bottles.”

The CAS decisions are similarly devastating regarding the credibility of McLaren, who created the IP report that was largely relied on by the IOC Disciplinary Commission when it banned Russian athletes without hearings to prove individual guilt. The key allegation made by McLaren was that the doping program was state-sponsored, primarily by virtue of the involvement of a cabinet minister, then–Minister of Sport (now Deputy Prime Minister) Vitaly Mutko: “The Ministry of Sport directed, controlled and oversaw the manipulation of athlete’s [sic] analytical results or sample swapping.”

Even though McLaren had access to 18 pages of Rodchenkov’s possibly self-serving diary, at the CAS hearing he denied using it in the IP report, testifying that it would be “far too complicated and difficult for us to use the diaries in the investigation” and that they “didn’t add any value to our investigation.” When confronted with a portion of his report that indeed uses the diary to make the critical point that Mutko took part in the doping scheme, the CAS decisions report as follows: “Prof. McLaren was not able to explain the inconsistency of his testimony, nor why he used the excerpts of the diaries.”

Furthermore, McLaren admitted at the CAS hearing that he did not know which, if any, of the accused athletes were on doping programs; that he had not hired any expert to examine the allegedly illegal drug cocktail; that he could not provide metadata, with one exception, for the numerous documents on which he relied to anyone else for verification; and that he would not provide the names of witnesses who had demanded anonymity. This lack of knowledge about individual guilt is particularly important because the CAS made it clear that, whether or not there was state-sponsored doping, there had to be individual proof in order to punish an individual: “In particular, it is insufficient for the IOC merely to establish the existence of an overarching doping scheme…. Instead, the IOC must go further and establish, in each individual case, that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV [Anti-Doping Rule Violation].”

Even more damning is what came out at the hearing about McLaren’s work regarding the sine qua non of the state-sponsored doping: opening up the tamper-proof bottles containing urine specimens. McLaren was always vague about this and never claimed precise knowledge of this crucial process—the only evidence for which was scratches on the bottle caps. The CAS hearing revealed the reason for his vagueness: the testimony at the CAS hearing by the expert witness testifying against the athletes—a professor of forensic science from the École des Sciences Criminelles at the Faculty of Law, Criminal Justice and Public Administration at the University of Lausanne—was a monument to junk science.

The job of a forensic expert witness in a case like this is to replicate something in the real world (in this case the removal and replacement of the tamper-proof bottle caps with certain kinds of scratches) for which there is evidence. Of course, the replication must occur under similar conditions to the alleged act being replicated.

The French professor utterly failed in this task. First, according to the published CAS decisions, there was no evidence about what the Russians allegedly did to open the bottles. The expert “conceded that his team had ‘no idea’ what tools were actually used by any individuals who tampered with the Sochi samples,” i.e., he was engaging in guesswork on what tools to use and how to use them.

Second, the forensic professor admitted that the conditions under which his team opened the bottles were drastically different from what happened in Sochi. For example, in the professor’s work, the bottles were closed only partially, and the bottles were empty, not full with urine as they would have been in Sochi. These two facts together are particularly significant because the French professor did not know whether the bottles in Sochi were turned upside down to perform the opening, and he admitted to the panel that the bottles can leak if they are only partially closed. Of course, the bottles were not empty at Sochi at the relevant time, so there is no purpose at all—no probative value—to open empty bottles, as the French professor did.

More important, there is absolutely no evidence at all that the bottles in Sochi were not fully closed, per the manufacturer’s instructions. The athletes were supposed to close the bottles initially, and this closure had to be double-checked by WADA Drug Control Officers (DCOs). Therefore, for Rodchenkov’s story to work, the DCOs would have to be co-conspirators in the alleged state-sponsored doping scheme. As the CAS decisions noted, “The Panel did not find any support for the suggestion advanced by the IOC, that the DCOs at the doping control stations could potentially be involved by allowing the athletes not to fully close their sample bottles.”

Finally, the French professor did not consider any other ways that the scratch marks could have come into existence except for tampering and normal use. As the CAS decisions state, “This factor limits the extent to which the findings in his report can be treated as determinative proof that scratch marks on particular athletes’ sample bottles were caused by tampering with tools.” The CAS further notes that the above point is particularly true because the athletes’ forensic expert testified that “marks of the type seen on the Athlete’s sample bottles could possibly have been caused during the transportation of the sample bottles.”

What does it say about the Times that it chose not to report any of the above revelations from the recently published CAS decisions? When The Nation sought comment, Times Sports Editor Jason Stallman replied, “The April decisions did not contradict our reporting but rather established a new threshold of evidence for the individual punishment of implicated athletes. In other words, no one was exonerated. As the court said in April, it was not weighing in on whether or not a system of cheating existed in Russia, ‘even though it recognizes that there is significant evidence that it was in place and worked.’”

But as a result of the sparse coverage of the CAS’s April decisions, the public and other media outlets relying on the Times for balanced reporting on these important issues did not get highly significant facts for their consideration. These facts undermine the previous Times coverage.

Although sports doping is an international issue, the Times has focused instead on one country, based on a witness who has admitted lying and cheating, and an obscure Canadian law professor who issued a completely one-sided report. Indeed, Rodchenkov continues to bolster his credibility in the Times, publishing an op-ed piece there last September on, ironically, the horrors of Russian cheating.

Illustrating the international nature of sports doping, WADA’s most recent doping report—published in April 2018, reporting on the year 2016—disclosed 1,574 athlete doping violations. Russia, tied for sixth with India, had 69 of those, approximately 4 percent of the total. The five countries with more violations than Russia are Italy (147), France (86), the United States (76), Australia (75), and Belgium (73).

No one, however, is calling for a mass ban from the Olympics of any of these five countries. Certainly one reason for that is that no leading press organization has focused on any of them unfairly.

Few, if any, media outlets have as much power to affect world affairs as The New York Times, reputed to be the newspaper of record. The Times’ refusal to correct the record of its Russian doping coverage, therefore, leaves intact the significant negative sports and political consequences of that coverage.

The latest major political consequence of that coverage is the Rodchenkov Anti-Doping Act, which, if passed, would honor an admitted cheater who, according to the IC Report, was an “an integral part of the conspiracy to extort money from athletes in order to cover up positive doping test results.” Not coincidentally, the New York Times journalist who reported on this legislation—and who co-authored the 2016 article that started this scandalous chain of events—failed to mention the inconvenient facts of the CAS reasoned decisions in her June 13, 2018, article on the proposed legislation honoring Rodchenkov.

Ronald KatzRonald Katz is a sports lawyer, and co-author of Sport, Ethics and Leadership.